Random Thoughts: NSA Wiretapping

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So I was watching "Hannity and Colmes" last night, and for about the thousandth time Alan Colmes made the argument that the NSA wiretaps were unconstitutional unless they were conducted with a warrant. Never mind that everyone he's debated the issue with has thoroughly explained to him why warrants are impractical for this matter, and why the wiretaps are important for stopping things like the bombing of the Brooklyn Bridge.

Here's my argument: The wiretappings are NOT unconstitutional. Wiretapping is not prohibited by the Constitution of the United States. I'm sorry, but it's the truth. Read it if you don't believe me.

"But N.R.," you'll say, "There was no such thing as a wiretap in 1791 so there's no way the writers could have addressed the issue in the Bill of Rights, you idiot!" To which I would say, "Ha ha! There was such a thing as eavesdropping, and all these wiretappings are is eavesdropping with technology!" Then you would hang your head in shame, because eavesdropping is not prohibited in the Constitution either.

But, for the sake of argument, let's say the wiretaps constitute a "search and seizure" like Alan Colmes keeps saying. Well, he thinks that means you need a warrant. He also needs to read the Fouth Amendment. The amendment prohibits "unreasonable searches and seizures". It also requires probable cause for warrants. Guess what? It doesn't require a warrant to perform a search or seizure. The Supreme Court, while I don't think much of their opinion, has routinely backed this up and has set many standards of what constitutes a reasonable search and seizure without a warrant. They're pretty much changing their minds on everything, starting with: "What is reasonable depends upon a variety of considerations and circumstances. It is an elastic term which is of uncertain value in definition." (Sussex Land and Livestock Co. v. Midwest Refining Co., 1923)

Great. Thanks Supreme Court. Now everyone's going to want to ask me, "But N.R., does that mean we'll never know whether or not NSA wiretapping is a reasonable search or seizure?" And my only answer will have to be, "I don't know, do you like the Brooklyn Bridge?"

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22 Comments

Yes the Brooklyn Bridge and the U.S. population - I like each of them. Liberals actually adore an intrusive government as long as it does not intrude on enemies of America.

No Relation said:

I only like some of the U.S. population, but I do like all of the Brooklyn Bridge.

I don't think either should be blown up, however.

zimzo said:

No one said wiretapping was unconstitutional. Wiretapping without a warrant is unconstitutional. The reason Clinton set up the FISA court was to expedite issuing warrants for just these kinds of circumstances. The Bush Administration chose instead to violate the law and circumvent the Constitution by ignoring the FISA court. But then, you already knew that because you're not as dumb as you sometimes pretend to be.

Loudoun Conservative said:

I just spoke with a military spouse who was absolutely outraged over Kerry's comments and wanted to know to whom she should communicate her displeasure. She remarked on the disrespect these comments showed to our troops, our fallen heroes and their familes.

charles said:

The program doesn't involve wiretapping. Stop calling it a Wiretapping program.

THe program involves INTERCEPTING communications in other countries. Wiretapping is putting a connection on a specific set of phones to collect information pursuant to a warrant.

But what we are doing with the NSA program is listening to a broad range of communications TO people who are terrorists, looking for stuff that would reveal a terrorist plot.

No Relation said:

Good call, Charles. I think most of us (except for maybe zimzo) understand the difference and have just taken to calling the interceptions by the misnomer they're frequently known.

Zimzo, I believe it was your turn to make a counterpoint. Instead, all you did was reiterate the original position to which I had already counterpointed. If you carefully reread my post, it's in the section called THE WHOLE THING. But then, you already knew that because you're not as illiterate as you sometimes pretend to be.

zimzo said:

Here's the text of the Fourth Amendment No Relation, which I guess you haven't read:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If a warrant isn't required for search and seizure then why does the Constitution say a warrant must describe "the place to be searched, and the persons or things to be seized"? Your reinterpretation of the very clear words of the Constitution is ludicrous.

Search and seizure without a warrant is allowable under certain narrowly defined circumstances: where a search is incident to a lawful arrest, automobile searches, when evidence is in plain view, where consent has been given, in the midst of a pursuit of a suspect, and where there is danger of imminent destruction of evidence. Certainly listening in to the private communications of Americans and fishing for evidence does not fall under one of these categories.

Please cite a case where the Supreme Court, while you "don't think much of their opinion" has allowed for search and seizure without a warrent in other than such narrowly defined circumstances.

It's amazing how so many conservatives think that immigration statutes are inviolable but the Constitution is something that can be defied or reinterpreted at will.

No Relation said:

Ah see, that was a little better than your "Clinton said" argument.

I know the Fourth well, don't worry about that. First of all, "persons, houses, papers, and effect" are all physical items. I don't believe the NSA's actions are forbidden by this amendment, even if we accept your argument that warrants are required for search and seizure. Eavesdropping, with any kind of technology, has been legitimate so long as there is no physical entry or confiscation. Charles was kind enough to emphasize that the NSA has NOT been using actual wiretaps, which would require physical entry.

Also, you've forgotten one key circumstance under which warrantless search and seizure is allowed: safety. "Terry v. Ohio" is the main one, I can't remember the year off the top of my head. If reasonable suspicion exists that life may be in danger, search and seizure can take place.

zimzo said:

In Terry v. Ohio a policeman thought he was in imminent danger from a suspect whom he thought had a weapon. It bears no relation to the NSA program whatsoever unless you believe we are in imminent danger that the American people are about to commit a terorist attack. If you are going to make that argument then what is to stop a government from saying they are in imminent danger from every American who owns a gun?

In Katz v. United States the Court extended Fourth Amendment protection wiretapping and eavesdropping. "The Government's activities in electronically listening to and recording the petitioner's words violate the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment," according to the Court. Something is a "search" under the Fourth Amendment if someone has exhibited an 'expectation of privacy,'" the Court wrote.

Nice try, No relation. Stick to your day job.

No Relation said:

Your gun analogy would only work if the NSA was listening in on every American with a phone.

Terry v. Ohio is relevant because we ARE in imminent danger of people in America committing terrorist acts. If you don't believe that, then nice try, stick to your crack-cocaine.

zimzo said:

You honestly believe we are in danger of an imminent terrorist attack from the millions of Americans whose communications the NSA has spied on? Now whose smoking crack?

charles said:

My point is simply that it isn't wiretapping.

As to zimzo's latest argument, I would normally start by pointing out that the court re-wrote the constitution in it's ruling. The 4th amendment was meant to prevent people from being inconvenienced, not provide them an "expectation of privacy" from which they could presume they would get away with criminal acts. If the founding fathers WANTED to protect that, they could easily have included "listening" in the 4th amendment, after all they certainly had ears and could stand outside a window and hear what was being said.

But that doesn't really matter, because the eavesdropping program was not intended to catch and convict criminals, it is meant to serve as a sentry in a time of war protecting our borders and our people against enemy attack.

Can you imagine the absurdity of a democrat arguing in World War 2 that cracking Japanese and German codes and listening to their communications violated 4th amendment rights because they obviously expected privacy? No, because that would be stupid, and democrats didn't used to be stupid.

The NSA program, like just about EVERYTHING the NSA does, is a data-mining operation watching for communications that reveal schemes against our security.

Tell you what. The day a person gets charged for a non-terrorist crime and the evidence is NSA eavesdropping evidence, I'll be the first to call for a law to prevent that. But it will never happen, that's not what the program is about.

zimzo said:

Charles writes: "The 4th amendment was meant to prevent people from being inconvenienced"

Yes the Founding Fathers were feeling "inconvenienced" by tyranny so that's why they wrote the Bill of Rights.

Charles: "If the founding fathers WANTED to protect that, they could easily have included "listening" in the 4th amendment, after all they certainly had ears and could stand outside a window and hear what was being said."

Justice Brandeis dealt with this argument in his eloquent dissent in Olmstead v. U.S. which was reversed by Katz, and which is quite relevant today:

"When the Fourth and Fifth Amendments were adopted, 'the form that evil had theretofore taken' had been necessarily simple. Force and violence were then the only means known to man by which a government could directly effect self-incrimination. It could compel the individual to testify-a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life-a seizure effected, if need be, by breaking and entry. Protection against such invasion of 'the sanctities of a man's home and the privacies of life' was provided in the Fourth and Fifth Amendments by specific language. Boyd v. United States, 116 U.S. 616, 630 , 6 S. Ct. 524. But 'time works changes, brings into existence new conditions and purposes.' Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. Moreover, 'in the application of a Constitution, our contemplation cannot be only of what has been, but of what may be.' The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of every man in the hands of every petty officer' was said by James Otis of much lesser intrusions than these. 1 To Lord Camden a far slighter intrusion seemed 'subversive of all the comforts of society.' 2 Can it be that the Constitution affords no protection against such invasions of individual security?"

Justice Brandeis goes on to quote from the 1886 case Boyd v. U.S.:

"The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case there before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employe of the sanctities of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense-it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence of a crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other."

So contrary to what Charles and No Relation claims there is a long history to the idea of a broad application of the principle of search and seizure and limits on government power.

Charles writes: "But that doesn't really matter, because the eavesdropping program was not intended to catch and convict criminals"

No Relation has already pointed out that evidence gathered under this program is being used against Lyman Faris, who plotted to bring down the Brooklyn Bridge with blowtorches (!). Although there was no danger of his imminently enacting this unlikely plan, the NSA and the FBI couldn't be bothered to get a search warrant.

Charles writes: "The day a person gets charged for a non-terrorist crime and the evidence is NSA eavesdropping evidence, I'll be the first to call for a law to prevent that."

That day will be too late, Charles. The President now has the power to declare such a person, even an American citizen, an enemy combatant and hold them without charges indefinitely and to torture them.

But you probably believe the Founding Fathers wouldn't have objected to that, either.

No Relation said:

Easy on the torture accusations, zimzo. You don't know about that, trust me.

Check out Justice Black's dissent in the Katz case. The language of the 4th is pretty clear and specific as to what it protects. Furthermore, in that case the FBI used an actual wiretap to listen in on a payphone conversation. That's different than what the NSA is doing. Anyone know of any cases that apply Katz to wireless communications? See Katz is a bit outdated.

zimzo said:

1) I don't trust you. There is ample evidence this government has used torture by any reasonable definition.

2) The point of the eloquent words I posted from Brandeis is that every new technology does not require an amendment to the Constitution. The principles of the Constitution, such as limits on executive power, can be applied to whatever new technology comes along. Black's dissent is not the law of the land, although with another Supreme Court appointment Bush may achieve the encroachment on individual freedoms he desires. So much for so-called "conservatism."

Jack said:

While I support the interception of the phone calls, I never did understand why Bush didn't go to the FISA court. My understanding is that the president has some period of time AFTER THE FACT, to apply for a retroactive warrant.

Jack said:

Could this be the end of the world? I'm agreeing with Zimzo on something!

No Relation said:

Jack, thanks for your comments. The warrant thing only works when you know exactly for what and where you are looking. The NSA program intercepts calls that are generally, but reasonably, suspicious. For example, calls going in and out of the Pakistan/Afghanistan border. All these calls that are intercepted, many innocent, go into a computer, and the computer picks up on certain combinations of key words specifically relating to terrorism. And then you can do things like stopping the destruction of the Brooklyn Bridge, and probably many others that have not been made public.

You can't get a warrant for an entire region.

Jack said:

I think we may be talking about two different things. I'm thinking of the international calls, in which a terrorist suspect outside the U.S. was calling someing inside the U.S. That was not a general sweep listening for keywords of phrases.

jacob said:

NR,
Just curious. If the police are conducting surveilence with a directional microphone,are they required to get a warrant?

No Relation said:

Jacob, I believe it depends on where the person is and what their expectation of privacy should be.

Jack and zimzo-

Let's look at this issue from another angle, since we seem to be at an impasse here. Part of problem is that the war on terror lacks clear definition. There is no country called "Terrorland" with whom we can declare war. If there were, this would be a non-issue. But never-the-less, we are at war, and we are constantly having to figure out exactly who we are fighting. If we intercepted communications to and from the Soviet Union, and we were never technically at war with them, then there should be no problem with this. We might not always be able to say exactly who the enemy is, but does that mean they should be given Constitutional rights? If the NSA was able to listen in to the conversations of Osama bin Laden himself, would you tell them they should get a warrant first?

Jack said:

"If the NSA was able to listen in to the conversations of Osama bin Laden himself, would you tell them they should get a warrant first?"

That is what the FISA court is for. To get the warrant AFTER THE FACT.

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